BABULAL Vs. STATE

JUDGEMENT

(1.) THE two appellants, both residents of a village near Sipra on the Bombay -Agra Road, were put on trial before the Court of Sessions, Dewas, along with a third accused Champalal son of Mangal, for the murder of Gangaram from the same locality, the first two hitting him innumerable times with lathis, in execution of the common intention of causing him such injuries as they knew to be sufficient in due course of nature to result in death; and the third for abetment of the same offence under section 114, Indian Penal Code. The last being acquitted, these two were convicted under section 302/34, Indian Penal Code, and sentenced to imprisonment for life. The murder was committed by broad day light soon after 10 A.M., on June 14, 1960, when Gangaram was cycling on Bombay -Agra Road from the direction of Maksi in the direction of Dewas and had come near the roadside village Kalma in the police station Tonk Khurd. Two persons were lying in wait in a depression by the roadside, felled the cyclist by throwing stones and then rushing on him and dragging him to the roadside literally showered blows on him. The main question is factual, whether the evidence is sufficient to establish beyond reasonable doubt that the appellants were those two assailants. The third, Champalal, beyond any doubt, appeared with a bicycle, immediately after the attack; he talked to the assailants, who went away in the direction of Maksi. Champalal himself was stopped by the only eye -witness Kashiram, and was taken to the village Kalma by another villager who came Boon after. The questions of law are ones relating to the assessment of one witness evidence; the need; if any, for corroboration; the effect of the apparent absence of precaution in the conduct of Identification Parades; that of the failure, if any, of the State, to give the accused the copy of a witness's statement under Section 162, Criminal Procedure Code; the evidentiary value as inference against the accused; of their falsehood about their presence and movements at or near the scene of the crime; and, finally the admissibility and effect of the expression of the dead body Man's fear that some particular persona were planning to kill him. The common ground in this case is that the two appellants were very actively on the side of Champalal, in his disputes about land with his widowed sister -in -law Sabodrabai; Gangaram, on the other hand, was on the side of the widow. The undisputed documents show that Champalal has lost in the civil suit, as well as in the proceedings before the Magistrate about possession, and by the commencement of that agricultural year, there were different incidents of serious obstruction by Champalal assisted by the two appellants of Sahodrabai's possession and enjoyment of the lands which was with the assistance of Gangaram. It is also common ground that, whether by accident or design, all persons concerned happened to be in the locality in which this murder was committed, about 20 or 25 miles from their normal residences and the location of the lands. At that time, Sohadrabai was staying with her brother Ranchhod at village Gorva. Gangaram had left Sipra on 12 -6 -60 on a bicycle and gone to Gorva to take this lady's instruction in connection with the possession and cultivation of the lands; he was actually returning from the village after passing village Piplia, when he was killed near Kalma, the next village near the road. Champalal has relations in this village within a few minutes walk from the place of the killing. He too had left Sipra on the 13th, the day after the departure of Gangaram. The appellants had been to the village Chidawad about four or five miles further up in the direction of Maksi. They assert that this was for a Panchayat to settle the compensation to Bhagirath by one Badri of that village who had taken away Bbagirath's wife in 'natra'. When arrested in the afternoon of the 14th June, one of them had Rs. 500 on him which, according to him, was the compensation paid by Badri. They were also returning on that morning or forenoon from Chidawad to Sipra; it is a point in controversy as to the manner and sequence in which they moved before boarding the bus at Chidawad at about midday between one or two hours after the killing about four or five miles away.

(2.) IN this connection, the timings of two of the several stage carriages on the road between Maksi and Sipra via Dewas are important. The first is the one on the Tarana -Indore route via Maksi and Dewas; it passes Chidawad at about 9 -46, and stops at the scheduled stop near Kalma at about 10 A.M. On that day, it was on time. It goes upto Indore about 30 miles away. It returns in the afternoon, and on that date, reported as usual at the Tonk Khurd beat house, at about 3 P.M. The conductor of that bus Chand Beg (P.W. 16) is a very important witness. The second stage carriage passes Chidawad at about midday, and then Kalma about ten or fifteen minutes later, and Dewas by 1 0 clock; it stops there for some time and then goes to Indore, Sipra lying in that section. The appellants. certainly traveled in that bus from Chidawad upto Dewas where, near a petrol pump, they were arrested and taken out by the police. They had tickets upto Sipra and were earring two lathis, one of them being a bamboo bound with iron bands and copper wire, but broken [at one end with the broken surface trimmed. The controversy is as to whether they had traveled in the earlier (that is, Chand Beg's) bus upto Kalma where they had got down at about 10 A. M. and got back to Chidawad for the second bus at about midday. It was in the second bus that Ramkishan (P. W. 3) of Fiplia came to Kalma. His village is about midway between Chidawad and Kalma. He has met Gangaram on the road, about "one peher after sunrise", and saw him off, towards Kalma; when later on, at about mid day he heard, from a 'motorwala' from Kalma, that a man from Barlai had been murdered there, be feared that it may be Gangaram, and went to find out. He found the two appellants in the same bus, and at Katma, reported this fact to the police, thereby leading to their arrest on the same bus at Dewas. He has given reasons for his suspicion, which have to be examined.

(3.) IT certainly admissible as a dying declaration. Be that as it may, and it will be examined later, it was Bamkishan that named the appellants as the possible murderers and it was this clue or suspicion that led to their arrest on the bus at Dewas, We are only concerned with Champalal incidentally; but his identification was no problem as he was actually on a visit to a relation at Kalma itself. Though that road is a busy one, at that moment, there was nobody except Kashiram near the scene of the murder. Bhera came soon after, not in time to see the beating but to hear from Kashiram what had happened and to take Champalal back to the village. It is certain that Kashiram had every opportunity of noting the course of the events, and of retaining a full daylight impression of the two assailants who were strangers to him. Be had no axe to grind in this matter and had nothing whatsoever to do with the quarrels between these two factions. Possibly, he had seen Champalal as a visitor to his village but absolutely nothing more. Undoubtedly impartial and intelligent by the village standards, he has also shown some public sense. Against his power of observation, there again nothing can be said and the cross -examination as to whether he was facing in this direction or that or whether the bush had not screened he view, is altogether fatuous. Three special grounds have been raised against his evidence. Firstly, it is urged that the first information report at Tonk Khurd police station, cannot be used for corroboration, because it was not the earliest information under section 154, Criminal Procedure Code and as such available for corroboration. Certainly, he had made a verbal report at the beat -bourse following which the hawaldar had taken steps. But the hawaldar of the beat -house was not an officer in charge of a police station nor was he otherwise empowered to record the information of a cognizable offence. Actually, also it is nobody's case or suggestion that written report was either made or banded in at the beat -house. Anyway, even without the corroboration from the first information report, the case stands: at all events, this is the earliest recorded examination by the police, and as it was available to the accused for cross -examination, no grievance can be made on this score. Secondly, it is argued that in course of the day, Kashiram was examined a second time by the investigating officer under section 162, which is quite usual and perfectly true in the present instance; farther that this statement has been suppressed, and not given in copy to accused on his request, and instead, a very summary note by the officer has been placed in the diary to the effect -"The witness corroborated the first information report." The suggestion is that the examination of this witness under section 162, made a few hours after recording his first information report, turned out to be very damaging to the prosecution case and accordingly has been suppressed by the police officer, and a forgery committed by him by writing up a new "statement".